Hance v. United States
Decision Date | 14 February 1962 |
Docket Number | 16778.,No. 16777,16777 |
Citation | 299 F.2d 389 |
Parties | Clifford J. HANCE, Jr., Appellant, v. UNITED STATES of America, Appellee. Bob Neal CARSON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
David C. Harrison, Salem, Mo., for appellant Clifford J. Hance, Jr., and Dorman L. Steelman, Salem, Mo., was with him on the brief.
Frank B. Green, St. Louis Mo., for appellant Bob Neal Carson, and Morris A. Shenker, Murry L. Randall and Lawrence J. Lee, St. Louis, Mo., were with him on the brief.
J. Whitfield Moody, Sp. Asst. U. S. Atty., Kansas City, Mo., for appellee, and F. Russell Millin, U. S. Atty., Kansas City, Mo., was with him on the brief.
Before VOGEL and RIDGE, Circuit Judges, and GRAVEN, Senior District Judge.
In Case No. 16777, appellant Clifford J. Hance, Jr., appeals from his convictions and sentences for uttering a counterfeit obligation of the United States in violation of Section 472, Title 18 U.S.C.A., and for conspiracy in relation to counterfeiting in violation of Section 371, Title 18 U.S.C.A. In Case No. 16778, appellant, Bob Neal Carson, appeals from his conviction and sentence for the same conspiracy. Appellants having been jointly indicted, tried and convicted by jury verdict, their appeals have been consolidated for disposition in this Court. Appellants will hereinafter be referred to as defendants.
Nine persons, including defendants, were named in a three-count indictment charging substantive offenses and conspiracy in violation of the counterfeiting laws, supra. Each of the defendants designated therein, except Hance and Carson, entered a plea of guilty to one or more of such charges. In these appeals Hance and Carson make no challenge as to the sufficiency of the evidence to sustain their respective convictions, nor as to the rightness of the sentences imposed on them. Their assignments of error relate to procedural matters, i. e. (1) the trial court erred in refusing to permit their defense counsel to make full inspection of all documents and reports of an undercover Secret Service Agent who testified for the Government at their trial; (2) that the trial court erred in refusing to make the grand jury testimony of that agent available to their counsel, and erred in refusing to examine the transcript of that witness' grand jury testimony in camera for inconsistency with his trial testimony; and (3) that such court erred by unfairly commenting on the evidence in its charge to the jury. Defendant Carson proffers the additional assignment, that the trial court erred in instructing the jury as to his interest as a witness in his own behalf in the outcome of the case. The first three assignments supra are stated analogously by appellants in their respective assignments of error. Hence we shall treat with them singularly. Facts appearing in relation thereto will be stated in the course of this opinion.
Secret Service Agent Richard Roth, a Government witness who operated for some time as an undercover agent and made contact with various members of the counterfeiting conspiracy here considered, testified at the trial of defendants. From time to time he refreshed his recollection by referral to a typewritten memorandum prepared from notes made by him during the course of his undercover activities. While testifying, Roth also had in his hands other papers consisting of rough, handwritten notes and copies of other typewritten reports made by him. During the course of Roth's direct testimony counsel for defendant Carson, addressing the trial court, remarked: "It is obvious that the witness is reading from some type of report." Thereupon, counsel for both defendants jointly requested permission of the court to see "those notes at this time." The Court ruled that such request was premature and that counsel would be permitted to see the report "at the proper time." After witness Roth completed his direct testimony counsel for defendant Carson commenced his cross-examination of Roth by asking: Thereupon, counsel for defendants, without further examination of witness Roth as to the nature, character, or time when any such reports were made, jointly moved "that the Government supply us with a copy of the reports which Mr. Roth has made." Thereafter, considerable colloquy out of the hearing of the jury (covering thirty-three pages of the transcript of the trial) ensued between court and counsel. Summarily, it may be stated that after the above broad request was made, counsel for the Government stated:
The Court then said:
Counsel for the Government then stated:
"We object to the introduction of these, or the turning of the reports to counsel for the defense because they contain therein references to investigative technique and procedure which, of course, is confidential and were received on a confidential basis which does not refer to or in any way covered by the testimony (sic) of the agent and we object to that extent."
Thereafter, all the documents that witness Roth had in hand while testifying were submitted to the trial court for an in camera examination. Counsel for the Government affirmed to the trial court that such instruments constituted all documents and reports made by agent Roth during the three-month course of his undercover activities, and no contention contra thereto is made in this case.
During the colloquy between court and counsel, counsel for defendant Carson made the following request to the court:
Defendant Carson's counsel further stated:
Thereafter, counsel for defendant Hance said:
Thereafter, the trial court noted in the record that the request so made by counsel was most general and in the light of the objection made by counsel for the Government he would make an in camera examination of all such notes and memoranda to ascertain whether any parts thereof related to the subject matter of the testimony given by Roth. This, the trial judge did during an overnight recess of the trial.
After such in camera review of the material delivered to the trial court, the same was divided into groups and designated by the Court as "Reports A, B, C, D, E, and F." The Government was directed by the Court to deliver to counsel for defendants "Report B"1 only and to retain all the other documents in the manner and fashion in which the trial court had separated and designated them, for review by this Court on appeal, as provided in Section 3500(c), Title 18 U.S.C. In connection with this appeal, all such documents have been lodged with this Court and we have examined the same for the purpose of determining the correctness of the ruling made by the trial judge.
As a result of its in camera examination, the trial court dictated into the record of this case its findings and conclusions as to each document reviewed by him and the general nature and character of the text thereof....
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